WARNING

The court hearing this matter directs that the following notice be attached to the file:

This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

☒ An order has been made allowing these reasons to be published, broadcast or transmitted

WARNING

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: June 9, 2022 Court File No.: 21-75004276 Location: College Park, Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

V.Z.

Ruling on Stage 1 Application Criminal Code Sections 276, 278.92 and 278.93

Before: Justice B. Jones

Heard on: June 3, 2022 Reasons for Judgment released on: June 9, 2022

Counsel: A. Spieser, counsel for the Crown R. Lepore, counsel for V.Z.

Jones J.:

Introduction

[1] V. Z. is charged with one count of sexual assault alleged to have occurred between May 9 and 15, 2021 on B.O., contrary to Criminal Code s. 271. He is also charged with one count of sexual assault and one count of common assault alleged to have occurred in February 2021. All charges stem from events that occurred during the course of an intimate partner relationship that was in place at the time. His trial is scheduled for October 7-9, 2022 in the Ontario Court of Justice.

[2] The complainant and the accused met via an online dating app and began an in-person relationship on January 21, 2021. Sometime between February 7 and 13, 2021, Ms. O. alleges that the accused was depressed and spoke of killing himself. He came into possession of a knife and rope which she feared he would use for this purpose. Ms. O. attended at his apartment and hid these items from him in order to prevent him from harming himself. This angered him and he slammed her into a refrigerator.

[3] During the week of February 21, 2021, Ms. O. attended at Mr. Z’s apartment. They engaged in consensual sex. They both agreed to aspects of rough sexual behaviour, role playing and bondage during this sexual encounter. Mr. Z. struck Ms. O in the face. It became too violent for her and she told him to stop. However, he refused and struck her in the face several more times. She suffered a black eye from this incident. This constitutes the first charge of sexual assault.

[4] On a day between May 9 and 15, 2021, Mr. Z. was at Ms. O’s apartment. He wanted her to perform fellatio on him but she refused. He grabbed her by the hair and forced her face down to his genital area. He placed his penis in her mouth. This constitutes the second charge of sexual assault.

The Applications

[5] Defence counsel Mr. Lepore brings an application pursuant to Criminal Code section 278.93 to request a hearing to determine if the defence may adduce evidence of specific instances of prior sexual activity between the accused and the complainant during the course of their relationship. He seeks to cross-examine the complainant on specific details of these sexual incidents and the nature of the relationship between the complainant and the accused.

[6] He also seeks an order of the court under Criminal Code section 278.92 permitting him to adduce evidence of text messages sent by the complainant to the accused on February 14, 2021. These messages are already in the possession of the defence and were provided as part of the application materials. Since these text messages reveal certain information about the sexual activity of the complainant, they also fall within the section 276 application framework.

[7] For stage one of this application Mr. Lepore provided an information and belief affidavit from Cathy Malta, a law clerk with his office. The contents of that affidavit explain the relationship between the parties involved sexual activity on ten to thirteen occasions between February 5, 2021 and May 15, 2021. These interactions took place primarily at Mr. Z’s apartment, and some took place at Ms. O’s residence.

[8] On February 6 or 7, 2021, the parties discovered they had a mutual interest in role playing, rough sexual play and bondage. They discussed their sexual preferences in this regard and what they were willing to engage in on a consensual basis. Ms. O. purportedly communicated her desire and consent to be compelled to fellate Mr. Z in the same manner described by her as having occurred between May 9 and 15, 2021. That is the subject matter of that offence. The affidavit further describes these sexual interactions involving role playing, rough play and/or bondage as beginning by Mr. Z. “compelling” Ms. O. to fellate him in this manner as described.

[9] According to the affidavit’s contents, six or seven sexual interactions between the parties involved Mr. Z being the dominant partner wherein he would slap the submissive Ms. O about the face and body and/or would bind her. She allegedly consented to this activity.

[10] With respect to the text messages that form part of this application, on February 14, 2021, Ms. O. messaged Mr. Z and sent him images of the bondage devices she wished to incorporate into their sexual activities. On February 28, 2021, while at Mr. Z’s apartment, the parties performed the sexual acts that Ms. O messaged him about on February 14.

[11] The affidavit also contains information that during one sexual encounter which took place between March and May, 2021, at Mr. Z’s apartment, he was unwilling to participate in the sexual activity preferred by Ms. O. This resulted in a discussion about the quality of their sexual relationship.

Criminal Code Sections 276 and 278.93

[12] The Criminal Code contains a two-stage process with respect to applications for the admission of evidence of a complainant’s prior sexual activity and/or private records in the possession of the accused.

[13] At the first stage, the applicant must meet the threshold requirements for establishing that a hearing is justified under section 278.94. The applicant must set out in writing the “detailed particulars of the evidence that the accused seeks to adduce” and its relevance to “an issue at trial”: section 278.93(2). The degree of specificity required will depend on “the circumstances of the case, the nature of the sexual activity that the accused seeks to adduce and the use to be made of that evidence”: see R. v. R.V., 2019 SCC 41 at para. 49. If the judge is satisfied that the evidence “is capable of being admissible under s. 276(2)”, a voir dire will be held under 278.94: see R. v. Barton, 2019 SCC 33 at para. 64. Such a hearing is held in camera and the complainant is not compellable at the hearing but may appear and make submissions.

[14] While section 278.93(2) requires that the written application contain “detailed particulars” of the evidence, it does not mention an affidavit. Nevertheless, in R. v. Darrach, 2000 SCC 46, the Supreme Court held that the prior version of the Code incorporating this requirement required the defence to file an affidavit of the evidence it sought to adduce: see para. 53. The affidavit must establish a connection between the evidence sought to be adduced and the accused’s defence.

[15] An “information and belief” affidavit is sufficient for this initial notice stage. If a hearing is ordered, a subsequent affidavit must be filed by someone who has personal knowledge of the sexual activity in question. As the Supreme Court explained in Darrach, part of the purpose of the voir dire is to cross-examine the affiant. The evidence may be tested at that stage.

[16] Ultimately, the evidence of prior sexual activity will be inadmissible unless the applicant satisfies the judge that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3).

[17] Criminal Code section 276 prohibits the introduction of prior sexual activity for either of the “twin myths”. Evidence that the complainant has engaged in sexual activity with the accused (or any other person) is not admissible to show that the complainant is

(1) more likely to have consented to the subject-matter of the charge; or

(2) is less worthy of belief.

[18] Prior sexual activity may be admissible if it meets four criteria:

(1) First, that it is not being adduced for the purpose of supporting one of the “twin myths”;

(2) Second, that it is relevant to an issue at trial;

(3) Third, that it is of specific instances of sexual activity; and

(4) Fourth, that is has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[19] For clarity’s sake, section 276(4) states that for the purposes of a section 276 application, “sexual activity” includes any communication made for a sexual purpose or whose content is of a sexual nature.

Position of the Parties

[20] Mr. Lepore submits that the evidence of prior instances of sexual conduct between the accused and complainant contained in the information and belief affidavit is relevant to the issues of consent and honest but mistaken belief in consent. They provide evidence of a pattern of interaction between Mr. Z and Ms. O, which, if accepted, could provide a basis for determining whether or not Ms. O consented to the sexual activity that forms the subject matter of the offences. In the alternative, the evidence is relevant to assessing Mr. Z’s honest but mistaken belief that Ms. O. was communicating consent at the time. Furthermore, he submits the evidence is crucial to understanding the nature of the relationship between them, and to appreciate the full extent of their consensual sexual activities.

[21] Ms. Spieser responds that there is not sufficient detail in the defence application. It is not enough to merely assert that in some fashion the prior sexual activities between the parties are relevant to the accused’s understanding of consent. Nowhere in the defence materials is there a specific explanation of how consent was articulated between the parties and how the accused would have relied upon that articulation of consent for a potential defence of honest but mistaken belief in communicated consent. She further submits that when assessing the merits of this application it must be remembered that the complainant’s consent cannot be assumed for future sexual activities simply because consensual sexual activity of a similar nature occurred in the past. Consent must be obtained for each sexual encounter. While it may be difficult to state with precision the degree of specificity required for a 276 stage one application, the evidence provided in this case is simply insufficient. She further emphasizes the importance of my gatekeeping function to prevent meritless applications from being granted a full hearing.

Law and Analysis

[22] Generally speaking evidence of a complainant’s prior sexual activity has no role to play in a criminal trial. This type of evidence has historically been used for improper purposes and has made it very difficult for complainants – especially women – to testify in sexual assault trials: see R. v. R.V. at para. 33; R. v. Goldfinch, 2019 SCC 38 at para. 33. Section 276 was intended to protect the “integrity of the trial process by striking a balance between the dignity and privacy of complainants and the right of accused persons to make full answer and defence”: Goldfinch at para. 39.

[23] While an accused person has the right to make full answer and defence, he does not have the right to introduce evidence or resort to procedures that would distort the truth-seeking function of the trial by permitting “irrelevant and prejudicial material”: see Darrach at para. 24.

[24] Before a voir dire is held to determine the admissibility of sexual activity evidence, it bears repeating that the defence must convince the court that the evidence is “capable of being admissible.” In Goldfinch, the Supreme Court emphasized the importance of this requirement. Justice Moldaver held that unless the defence materials set out how the evidence supports a “legitimate aspect of his defence and is integral to his ability to make full answer and defence” the application may be summarily dismissed: see para. 95; Darrach at para. 56. Marginal relevance will not suffice. Countervailing considerations, such as the need to protect the privacy rights and dignity of the complainant, may outweigh a mere tenuous connection the evidence purportedly has to the accused’s ability to make full answer and defence: see Goldfinch at para. 96.

[25] Evidence of prior sexual activity will almost never be relevant to the issue of whether the complainant consented to the sexual activity forming the charge: see Darrach at para. 58. This is because evidence adduced for that purpose takes direct aim at the first twin myth – namely that it makes it more likely that the complainant consented to the sexual activity forming the subject matter of the charge: see R. v. D.K., 2020 ONCA 79 at para. 51.

[26] I find that the evidence contained in the information and belief affidavit is not capable of being admissible under section 276(2) with respect to the issue of consent. Even if the parties did engage in this consensual role playing activity on several occasions prior to the allegations of sexual assault, that would not be relevant evidence with respect to whether or not the complainant consented on the day of the offences. That is determined solely by reference to her subjective state of mind: see R. v. Ewanchuk, [1999] 1 SCR 330 at para. 26.

[27] However, I reach a different conclusion with respect to the defence of honest but mistaken belief in communicated consent. Honest but mistaken belief in communicated consent, whether by words or conduct, is a viable defence to a charge of sexual assault: Barton at para. 91; R. v. J.A., 2011 SCC 28 at para. 37. Section 273.1(2) of the Criminal Code sets out the parameters of this defence. The Supreme Court in Barton clarified that relevant evidence for this defence includes not only the complainant’s communicative behaviour, but also the “totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent”: Barton at para. 91, citing R. v. Park, [1995] 2 SCR 836 at para. 44.

[28] The Supreme Court in Barton further held that prior discussions or negotiations between the accused and complainant with respect to their consensual sexual activities may be admissible and form important evidence to assess the merits of this defence. At para. 93 the Court wrote:

…in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: “… prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question” (M. J. Anderson, “Time to Reform Rape Shield Laws: Kobe Bryant Case Highlights Holes in the Armour” (2004), 19 Crim. Just. 14, at p. 19, cited in Hill, Tanovich and Strezos, at § 16:20.50.30).

[29] Specific instances of prior sexual activity that provide evidence of a pattern of interaction between the parties which, if accepted, could lay the foundation for an articulable defence of honest but mistaken belief in communicated consent can meet the admissibility criteria required under section 276(2): see R. v. G.K., 2020 ONSC 6786 at para. 35. The information and belief affidavit includes evidence that Ms. O. communicated to Mr. Z in their prior sexual interactions that she agreed to have him “compel” her to fellate him in the same manner she describes as constituting the sexual assault that forms the basis of the charge before the court in May 2021. If accepted, that evidence could establish that Mr. Z honestly, yet mistakenly, believed that Ms. O was consenting at the time of the alleged offence as he would have perceived her behaviour as communicating consent based on their prior consensual sexual interactions.

[30] This defence is limited by various provisions of the Criminal Code. Section 273.1(2)(d) states that it is not a defence to a charge of sexual assault that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where consent is vitiated because the complainant expresses, by words or conduct, a lack of agreement to engage in the activity. Section 273.2(b) also requires the accused to have taken reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[31] Not every claim that the parties engaged in prior role-playing or dominant/submissive scenarios will therefore result in a successful application under section 276(2). Where the evidence presented by the accused, even if accepted, fails to establish that he could have reasonably perceived communicated consent in law the application must be dismissed. This may occur where the number of prior sexual encounters fails to establish a custom or practice that can establish legitimate expectations of how consent was to be communicated between the parties, or where the prior sexual encounters are simply too remote in time from the offences: see R. v. R.S., 2020 ONSC 1328 paras. 30-32. An erroneous belief, even honestly held by the accused, that fails to meet the requirements of the defence of honest but mistaken belief in consent contained in the Criminal Code is simply a mistake of law and provides no basis for an application under section 276(2): see R.S. at para. 29.

[32] Furthermore, an accused cannot rely upon advance consent, especially with undefined parameters, as that does not constitute legal consent: see Barton at para. 99. Nor can an accused simply assume consent. Affirmatively communicated consent must be given for each separate sexual interaction: see J.A., supra, at para. 34.

[33] Nevertheless, I find that the proposed prior sexual history evidence is capable of being admitted under section 276 with respect to the defence of honest but mistaken belief in communicated consent. How consent is communicated in sexual relationships will depend on the individuals involved, the circumstances of each sexual encounter, their personal preferences and their prior discussions about consent. If the proposed defence evidence is ultimately accepted, it could establish a pattern of prior consensual sexual activity sufficiently temporally and factually connected to the circumstances of the offences that would support a defence of honest but mistaken belief in communicated consent. This will depend on if the accused can explain why the evidence he seeks to rely upon informed his honest but mistaken belief that Ms. O affirmatively communicated consent to the sexual activity that forms the subject matter of the offences. The proposed evidence must also meet the statutory requirements in the Criminal Code: see Barton at para. 93; R. v. H.W., 2022 ONCA 15 at paras. 47-52.

[34] I acknowledge that relationship evidence sought to be admitted solely for context will not normally pass the requirements of section 276. It simply does not have sufficient probative value: see Goldfinch, supra at paras. 58 and 65. However, in R. v. Kennedy, 2020 NLCA 25, the Newfoundland Court of Appeal held that where the prior sexual activity evidence is being tendered not simply for context of how the relationship between the parties unfolded, but rather to demonstrate how the complainant previously communicated consent and how the accused understood that consent, the evidence may be lawfully admissible: see paras. 61-67. In that case, the affidavit produced in support of the 276 application was from the accused. He stated in his affidavit that he believed the sexual activity in question was on consent “because it happened the same way it happened most of the other times. By that, I mean it was in secret, in a car and in a secluded place”: see para. 56. Similarly, the information and belief affidavit filed in this case contains a statement that the prior sexual activity was of a role-playing and rough nature in the same manner described by the complainant at least with respect to the May 2021 offence.

[35] In R. v. AP, 2011 ONSC 2716, Justice Quigley of the Superior Court of Court admitted prior sexual activity evidence on a similar basis where the accused alleged his sexual history with the complainant involved dominant /submissive role playing activities that informed his defence of honest but mistaken belief in communicated consent. The previous sexual encounters in that case involved the parties acting out rape scenarios where “no” actually meant “yes”. The case was overturned on appeal on other grounds, and the Court of Appeal did not comment on the merits of the 276 application: see R. v. A.P., 2013 ONCA 344. Nevertheless, the factual underpinnings of that application have been described as a “classic example” of how prior sexual activity evidence may be admissible on a section 276 application: see Jill Witkin and Dan Brown, Prosecuting and Defending Sexual Offence Cases, 2nd Edition (Toronto: Emond Publishing, 2020) at p. 378.

[36] The test for the admission of this evidence must balance the importance of the dignity, equality and privacy rights the complainant alongside the fundamental importance of the accused’s right to make full answer and defence. In R v. B.G., 2021 ONSC 83 at para. 21 the Superior Court of Justice articulated the threshold test for a stage one application. The Court held that only “clearly unmeritorious applications” should be denied a second stage hearing. This application passes that standard.

[37] With respect to the text messages that form part of this application, section 278.92(1) states that no record shall be permitted in evidence if it is in the possession of the accused and contains personal information for which there is a reasonable expectation of privacy relating to a complainant, unless the same threshold requirement is met. The text messages included as exhibits in the information and belief affidavit are of a sexual nature and are intricately linked to the basis for the application to introduce the prior sexual history evidence. They were sent by Ms. O to Mr. Z and indicate her desire to engage in certain forms of sexual activity that will form both part of the narrative of the events in this case and also relate to the specific issue of how consent was communicated between the parties. They too are “capable of” being admitted under section 276(2).

Conclusion and Directions

[38] There will be an order for a hearing under section 278.94 to determine if the proposed prior sexual activity evidence and text messages are admissible under subsection 276(2).

[39] The complainant shall be notified of her right to participate in the hearing and to be represented by counsel. As per section 278.94(2), she is not a compellable witness at the hearing.

[40] The defence shall file prior to that hearing an affidavit from the accused. He is the only person who can offer relevant evidence (other than the complainant) from personal knowledge about the prior sexual activity and how it demonstrates consent was communicated at the time and in turn how that impacted upon his belief about consent at the time of the alleged offence: see R. v. Wilson, 2014 ONSC 7002 at para. 39 [1]. That affidavit will meet the requirements of the Criminal Code including that it contains detailed particulars such that the court can properly assess the merits of this application.

[41] The affidavit must be provided by June 30 to both the Crown and counsel for the complainant.

[42] The affiant will be available for cross-examination on the date of the stage two hearing.

Released: June 9, 2022 Signed: Justice Brock Jones

[1] The New Brunswick Court of Appeal held in R. v. Simoes, 2020 NBCA 73 that the defence of honest but mistaken belief in communicated consent can even be raised where the accused does not testify. There is also no requirement in the Criminal Code that the affidavit come directly from the accused. However, in this case, defence counsel has indicated to me his intention to produce an affidavit from Mr. Z at the second stage of this proceeding.